August 17, 2015
In Clay v Doe and Suburban Mobility Authority for Regional Transportation, ___ Mich App ___ (7/14/15), the Michigan Court of Appeals applied the Michigan Supreme Court’s decision in Atkins v SMART, 492 Mich 707 (2012) retroactively and held that an application for no-fault benefits is not sufficient notice of a tort claim under MCL 124.419.
Plaintiff sought no-fault benefits after he was injured while boarding a Suburban Mobility Authority for Regional Transportation (“SMART”) bus on April 18, 2011. His claim was received by SMART’s insurance administrator on July 5, 2011, 78 days after plaintiff was injured. Almost 2 years later, plaintiff filed suit alleging negligence against SMART and the individual bus driver. In his complaint filed March 20, 2013, plaintiff averred that the bus driver accelerated too quickly and caused him to slip and fall.
SMART filed a motion for summary disposition arguing that the claim was time barred by MCL 124.419. Specifically, MCL 124.419 requires a tort claimant, like Clay, to provide the transportation authority “written notice of any claim based upon injury… no later than 60 days from the occurrence through which the injury is sustained.” Moreover, SMART argued that filing an application for no-fault benefits from a transit authority’s insurance administrator does not satisfy the notice provision contained in MCL 124.419, as the Michigan Supreme Court held in Atkins.
The trial court granted summary disposition in favor of SMART holding that Clay did not comply with the notice provisions of MCL 124.419. Clay appealed.
On appeal, the Court of Appeals noted that both plaintiff and defendants agreed if Atkins was applied, retrospectively, to this case, plaintiff’s claim must fail because plaintiff did not submit a “written notice” of his “ ‘ordinary claims’ for personal injury” to SMART “within 60 days” of his injury. Instead, he sent a claim for no-fault benefits 78 days after his injury. Where Atkins held that notice of a claim for first-party benefits is not the equivalent of notice of a third-party tort claim, plaintiff failed to comply with MCL 124.419 and his suit must be dismissed.
Clay argued that Atkins should not be applied retroactively and thus should not apply to this loss because he was injured prior to the Michigan Supreme Court’s decision. The Court found this assertion was not supported by Michigan law. Judicial decisions are generally “given full retroactive effect.” Paul v Wayne Co Dept of Pub Services, 271 Mich App 617, 620 (2006). The Court found SMART had accurately observed that Atkins did not create a “new principle of law” or overrule binding case law. Rather, it merely interpreted a statute, MCL 124.419. Thus, plaintiff’s attempt to rely on an “old rule” that classified a request for no-fault benefits as compliance with MCL 124.419’s notice provisions was misplaced because no such “old rule” existed. As a result, the Court applied Atkins and affirmed the trial court’s dismissal of plaintiff’s suit pursuant to MCR 2.116(C)(7).
The Court further determined that even if Atkins did not apply, plaintiff’s claim should be dismissed because he failed to comply with the notice provisions of MCL 124.419. The Court found the trial court correctly held that MCL 124.419 requires “written notice” of an “ordinary claim against a common carrier” to be “served upon the authority no later than 60 days from the occurrence through which such injury is sustained ….” Here, plaintiff failed to provide SMART’s insurance administrator with “written notice” of his demand for no-fault benefits within 60 days of his fall and thus did not comply with the mandates of MCL 124.419.
TROY BREAKFAST SEMINAR
The Troy Breakfast Seminar will take place on Thursday, September 3, 2015, at the Troy Marriott. Please note, this is a complimentary seminar for our clients. Contact Eileen Carty to register: firstname.lastname@example.org or (800) 875-7600.
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BASICS OF MICHIGAN AUTOMOBILE NO-FAULT INSURANCE LAW COURSE
Garan Lucow Miller, P.C. is pleased to once again offer this in-depth, educational course in the Fall of 2015. It will be taught each Tuesday evening, beginning September 29, 2015, and running through November 24, 2015, from 6:00 p.m. to 8:00 p.m.
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INDY CITY SEMINAR
The Indy City Seminar will take place on Thursday, September 24, 2015, at The Indianapolis Marriott Downtown. Please note, this is a complimentary seminar for our clients. Contact Eileen Carty to register: firstname.lastname@example.org or (800) 875-7600.
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